Attorney-Client Privilege Applies to MediationApril 30, 2019 – Articles
Dinsmore employment law attorney Alyson St. Pierre co-authored an article for The Indiana Lawyer regarding the confidentiality involved in mediation sessions. An excerpt is below.
There are many situations where an individual may want to admit into evidence statements made at mediation. The obvious situation is after mediation fails, where opposing counsel may argue that communications made at mediation in the presence of a nonparty should be admissible. Still other situations arise. For example, a legal malpractice claim arising out of events that took place at a previous mediation.
In light of the courts’ strong tendency to preserve the confidentiality of mediation and with these cases as guideposts, Indiana’s courts would likely uphold the confidentiality of mediation-related communications regardless of who is present.
Even though Indiana courts would likely not permit a waiver of confidentiality if an opposing party sought mediation-related communications between a party and her counsel that were made in a nonparty’s presence, to ensure such communications are unattainable counsel can: (1) prevent the nonparty from participating in separate sessions [based on the mediator’s discretion under ADR Rule 2.11(A)(1)],and/or (2) execute an agreement between all persons present at mediation, which explicitly states that confidentiality applies to all communications and any nonparty participation shall not be construed as a waiver of attorney-client privilege or confidentiality.